Warth v Seldin, Craig vs Boren

8/10/2019 Warth v Seldin, Craig vs Boren

1/16

Political Law 1 7/15/2014

Page | 1

U.S. Supreme CourtDeFunis v. Odegaard, 416 U.S. 312 (1974)No. 73-235Argued February 26, 1974Decided April 23, 1974416 U.S. 312CERTIORARI TO THE SUPREME COURT OF WASHINGTON

Syllabus

After being denied admission to a state-operated law school, petitioner brought this suit on behalf of himself alone forinjunctive relief, claiming that the school's admissions policy racially discriminated against him in violation of the Equal ProtectionClause of the Fourteenth Amendment. The trial court agreed and ordered the school to admit him in the fall of 1971. TheWashington Supreme Court reversed, holding that the school's admissions policy was not unconstitutional. MR. JUSTICEDOUGLAS, as Circuit Justice, stayed that judgment pending this Court's final disposition of the case, with the result thatpetitioner was in his final school year when this Court considered his petition for certiorari. After oral argument, the Court wasinformed that petitioner had registered for his final quarter. Respondents have assured the Court that this registration is fullyeffective regardless of the ultimate disposition of the case.

Held:Because petitioner will complete law school at the end of the term for which he has registered regardless of anydecision this Court might reach on the merits, the Court cannot, consistently with the limitations of Art. III of the Constitution,

consider the substantive constitutional issues, and the case is moot.(a) Mootness here does not depend upon a "voluntary cessation" of the school's admissions practices, but upon the

simple fact that petitioner is in his final term, and the school's fixed policy to permit him to complete the term.(b) The case presents no question that is "capable of repetition, yet evading review," since petitioner will never again

have to go through the school's admissions process, and since it does not follow that the issue petitioner raises will in the futureevade review merely because this case did not reach the Court until the eve of petitioner's graduation.

82 Wash.2d 11, 507 P.2d 1169, vacated and remanded.Page 416 U. S. 314PER CURIAM.In 1971, the petitioner Marco DeFunis, Jr., [Footnote 1]applied for admission as a first-year student at the University of

Washington Law School, a state-operated institution. The size of the incoming first-year class was to be limited to 150 persons,and the Law School received some 1,600 applications for these 150 places. DeFunis was eventually notified that he had beendenied admission. He thereupon commenced this suit in a Washington trial court, contending that the procedures and criteria

employed by the Law School Admissions Committee invidiously discriminated against him on account of his race in violation ofthe Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

DeFunis brought the suit on behalf of himself alone, and not as the representative of any class, against the variousrespondents, who are officers, faculty members, and members of the Board of Regents of the University of Washington. Heasked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-yearclass entering in September, 1971, on the ground that the Law School admissions policy had resulted in the unconstitutionaldenial of his application for admission. The trial court agreed with his claim and granted the requested relief.

Page 416 U. S. 315DeFunis was, accordingly, admitted to the Law School and began his legal studies there in the fall of 1971. On appeal,

the Washington Supreme Court reversed the judgment of the trial court and held that the Law School admissions policy did notviolate the Constitution. By this time, DeFunis was in his second year at the Law School.

He then petitioned this Court for a writ of certiorari, and MR. JUSTICE DOUGLAS, as Circuit Justice, stayed thejudgment of the Washington Supreme Court pending the "final disposition of the case by this Court." By virtue of this stay,DeFunis has remained in law school, and was in the first term of his third and final year when this Court first considered hiscertiorari petition in the fall of 1973. Because of our concern that DeFunis' third-year standing in the Law School might haverendered this case moot, we requested the parties to brief the question of mootness before we acted on the petition. In response,both sides contended that the case was not moot. The respondents indicated that, if the decision of the Washington SupremeCourt were permitted to stand, the petitioner could complete the term for which he was then enrolled, but would have to apply tothe faculty for permission to continue in the school before he could register for another term. [Footnote 2]

We granted the petition for certiorari on November 19, 1973. 414 U.S. 1038. The case was in due course orally arguedon February 26, 1974.

In response to questions raised from the bench during the oral argument, counsel for the petitioner has informed theCourt that DeFunis has now registered "for his final

Page 416 U. S. 316quarter in law school." Counsel for the respondents have made clear that the Law School will not in any way seek to

abrogate this registration. [Footnote 3]In light of DeFunis' recent registration for the last quarter of his final law school year, andthe Law School's assurance that his registration is fully effective, the insistent question again arises whether this case is not

moot, and to that question we now turn.The starting point for analysis is the familiar proposition that "federal courts are without power to decide questions that

cannot affect the rights of litigants in the case before them." North Carolina v. Rice,404 U. S. 244 246 (1971). The inability of thefederal judiciary

"to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicialpower depends upon the existence of a case or controversy."

Liner v. Jafco, Inc.,375 U. S. 301,375 U. S. 306 n. 3 (1964); see also Powell v. McCormack,395 U. S. 486,395 U. S.496 n. 7 (1969); Sibron v. New York,392 U. S. 40,392 U. S. 50 n. 8 (1368). Although, as a matter of Washington state law, it
http://supreme.justia.com/cases/federal/us/416/312/case.html#F1http://supreme.justia.com/cases/federal/us/416/312/case.html#F2http://supreme.justia.com/cases/federal/us/416/312/case.html#F3http://supreme.justia.com/cases/federal/us/404/244/case.htmlhttp://supreme.justia.com/cases/federal/us/375/301/case.htmlhttp://supreme.justia.com/cases/federal/us/375/301/case.html#306http://supreme.justia.com/cases/federal/us/395/486/case.htmlhttp://supreme.justia.com/cases/federal/us/395/486/case.html#496http://supreme.justia.com/cases/federal/us/395/486/case.html#496http://supreme.justia.com/cases/federal/us/392/40/case.htmlhttp://supreme.justia.com/cases/federal/us/392/40/case.html#50http://supreme.justia.com/cases/federal/us/392/40/case.html#50http://supreme.justia.com/cases/federal/us/392/40/case.htmlhttp://supreme.justia.com/cases/federal/us/395/486/case.html#496http://supreme.justia.com/cases/federal/us/395/486/case.html#496http://supreme.justia.com/cases/federal/us/395/486/case.htmlhttp://supreme.justia.com/cases/federal/us/375/301/case.html#306http://supreme.justia.com/cases/federal/us/375/301/case.htmlhttp://supreme.justia.com/cases/federal/us/404/244/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F3http://supreme.justia.com/cases/federal/us/416/312/case.html#F2http://supreme.justia.com/cases/federal/us/416/312/case.html#F1


2/16


Page | 2

appears that this case would be saved from mootness by "the great public interest in the continuing issues raised by this appeal,"82 Wash.2d 11, 23 n. 6, 507 P.2d 1169, 1177 n. 6 (1973), the fact remains that, under Art. III,

"[e]ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolvebefore it assumes jurisdiction."

North Carolina v. Rice, supra,at404 U. S. 246.The respondents have represented that, without regard to the ultimate resolution of the issues in this case,Page 416 U. S. 317DeFunis will remain a student in the Law School for the duration of any term in which he has already enrolled. Since he

has now registered for his final term, it is evident that he will be given an opportunity to complete all academic and otherrequirements for graduation, and, if he does so, will receive his diploma regardless of any decision this Court might reach on themerits of this case. In short, all parties agree that DeFunis is now entitled to complete his legal studies at the University ofWashington and to receive his degree from that institution. A determination by this Court of the legal issues tendered by theparties is no longer necessary to compel that result, and could not serve to prevent it. DeFunis did not cast his suit as a classaction, and the only remedy he requested was an injunction commanding his admission to the Law School. He was not onlyaccorded that remedy, but he now has also been irrevocably admitted to the final term of the final year of the Law School course.The controversy between the parties has thus clearly ceased to be "definite and concrete," and no longer "touch[es] the legalrelations of parties having adverse legal interests."Aetna Life Ins. Co. v. Haworth,300 U. S. 227,300 U. S. 240-241 (1937).

It matters not that these circumstances partially stem from a policy decision on the part of the respondent Law Schoolauthorities. The respondents, through their counsel, the Attorney General of the State, have professionally represented that in noevent will the status of DeFunis now be affected by any view this Court might express on the merits of this controversy. And it

has been the settled practice of the Court, in contexts no less significant, fully to accept representations such as these asparameters for decision. See Gerende v. Election Board,341 U. S. 56 (1951); Whitehill v. Elkins,389 U. S. 54,389 U. S. 57-58(1967); Ehlert v. United States,402 U. S. 99,

Page 416 U. S. 318402 U. S. 107 (1971); cf. Law Students Research Council v. Wadmond,401 U. S. 154,401 U. S. 162-163 (1971).There is a line of decisions in this Court standing for the proposition that the"voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the

case, i.e.,does not make the case moot."United States v. W. T. Grant Co.,345 U. S. 629,345 U. S. 632 (1953); United States v. Trans-Missouri Freight

Assn.,166 U. S. 290,166 U. S. 308-310 (1897); Walling v. Helmerich & Payne, Inc.,323 U. S. 37,323 U. S. 43 (1944); Gray v.Sanders, 372 U. S. 368, 372 U. S. 376 (1963); United States v. Phosphate Export Assn., 393 U. S. 199,393 U. S. 202-203(1968). These decisions and the doctrine they reflect would be quite relevant if the question of mootness here had arisen byreason of a unilateral change in the admissions procedures of the Law School. For it was the admissions procedures that were

the target of this litigation, and a voluntary cessation of the admissions practices complained of could make this case moot only ifit could be said with assurance "that there is no reasonable expectation that the wrong will be repeated.'"United States v. W. T.Grant Co., supra, at345 U. S. 633.Otherwise, "[t]he defendant is free to return to his old ways," id. at345 U. S. 632,and this factwould be enough to prevent mootness because of the "public interest in having the legality of the practices settled." Ibid. Butmootness in the present case depends not at all upon a "voluntary cessation" of the admissions practices that were the subject ofthis litigation. It depends, instead, upon the simple fact that DeFunis is now in the final quarter of the final year of his course ofstudy, and the settled and unchallenged policy of the Law School to permit him to complete the term for which he is now enrolled.

It might also be suggested that this case presents a question that is "capable of repetition, yet evadingPage 416 U. S. 319review." Southern Pacific Terminal Co. v. ICC,219 U. S. 498,219 U. S. 515 (1911);Roe v. Wade,410 U. S. 113,410 U.

S. 125 (1973), and is thus amenable to federal adjudication even though it might otherwise be considered moot. But DeFunis willnever again be required to run the gauntlet of the Law School's admission process, and so the question is certainly not "capableof repetition" so far as he is concerned. Moreover, just because this particular case did not reach the Court until the eve of the

petitioner's graduation from law school, it hardly follows that the issue he raises will in the future evade review. If the admissionsprocedures of the Law School remain unchanged, [Footnote 4]there is no reason to suppose that a subsequent case attackingthose procedures will not come with relative speed to this Court now that the Supreme Court of Washington has spoken. Thiscase, therefore, in no way presents the exceptional situation in which the Southern Pacific Terminal doctrine might permit adeparture from

"[t]he usual rule in federal cases . . . that an actual controversy must exist at stages of appellate or certiorari review, andnot simply at the date the action is initiated."

Roe v. Wade, supra,at410 U. S. 125;United States v. Munsingwear, Inc.,340 U. S. 36 (1950).Because the petitioner will complete his law school studies at the end of the term for which he has now registered

regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistentlywith the limitations of

Page 416 U. S. 320Art. III of the Constitution, consider the substantive constitutional issues tendered by the parties. [Footnote 5]

Accordingly, the judgment of the Supreme Court of Washington is vacated, and the cause is remanded for such proceedings asby that court may be deemed appropriate.

It is so ordered.[Footnote 1]Also included as petitioners are DeFunis' parents and his wife. Hereafter, the singular form "petitioner" is used.[Footnote 2]By contrast, in their response to the petition for certiorari, the respondents had stated that DeFunis"will complete his third year [of law school] and be awarded his J.D. degree at the end of the 1973-74 academic year

regardless of the outcome of this appeal."
http://supreme.justia.com/cases/federal/us/404/244/case.html#246http://supreme.justia.com/cases/federal/us/300/227/case.htmlhttp://supreme.justia.com/cases/federal/us/300/227/case.html#240http://supreme.justia.com/cases/federal/us/341/56/case.htmlhttp://supreme.justia.com/cases/federal/us/389/54/case.htmlhttp://supreme.justia.com/cases/federal/us/389/54/case.html#57http://supreme.justia.com/cases/federal/us/402/99/case.htmlhttp://supreme.justia.com/cases/federal/us/402/99/case.html#107http://supreme.justia.com/cases/federal/us/401/154/case.htmlhttp://supreme.justia.com/cases/federal/us/401/154/case.html#162http://supreme.justia.com/cases/federal/us/345/629/case.htmlhttp://supreme.justia.com/cases/federal/us/345/629/case.html#632http://supreme.justia.com/cases/federal/us/166/290/case.htmlhttp://supreme.justia.com/cases/federal/us/166/290/case.html#308http://supreme.justia.com/cases/federal/us/323/37/case.htmlhttp://supreme.justia.com/cases/federal/us/323/37/case.html#43http://supreme.justia.com/cases/federal/us/372/368/case.htmlhttp://supreme.justia.com/cases/federal/us/372/368/case.html#376http://supreme.justia.com/cases/federal/us/393/199/case.htmlhttp://supreme.justia.com/cases/federal/us/393/199/case.html#202http://supreme.justia.com/cases/federal/us/345/629/case.html#633http://supreme.justia.com/cases/federal/us/345/629/case.html#632http://supreme.justia.com/cases/federal/us/219/498/case.htmlhttp://supreme.justia.com/cases/federal/us/219/498/case.html#515http://supreme.justia.com/cases/federal/us/410/113/case.htmlhttp://supreme.justia.com/cases/federal/us/410/113/case.html#125http://supreme.justia.com/cases/federal/us/410/113/case.html#125http://supreme.justia.com/cases/federal/us/416/312/case.html#F4http://supreme.justia.com/cases/federal/us/410/113/case.html#125http://supreme.justia.com/cases/federal/us/340/36/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F5http://supreme.justia.com/cases/federal/us/416/312/case.html#T1http://supreme.justia.com/cases/federal/us/416/312/case.html#T2http://supreme.justia.com/cases/federal/us/416/312/case.html#T2http://supreme.justia.com/cases/federal/us/416/312/case.html#T1http://supreme.justia.com/cases/federal/us/416/312/case.html#F5http://supreme.justia.com/cases/federal/us/340/36/case.htmlhttp://supreme.justia.com/cases/federal/us/410/113/case.html#125http://supreme.justia.com/cases/federal/us/416/312/case.html#F4http://supreme.justia.com/cases/federal/us/410/113/case.html#125http://supreme.justia.com/cases/federal/us/410/113/case.html#125http://supreme.justia.com/cases/federal/us/410/113/case.htmlhttp://supreme.justia.com/cases/federal/us/219/498/case.html#515http://supreme.justia.com/cases/federal/us/219/498/case.htmlhttp://supreme.justia.com/cases/federal/us/345/629/case.html#632http://supreme.justia.com/cases/federal/us/345/629/case.html#633http://supreme.justia.com/cases/federal/us/393/199/case.html#202http://supreme.justia.com/cases/federal/us/393/199/case.htmlhttp://supreme.justia.com/cases/federal/us/372/368/case.html#376http://supreme.justia.com/cases/federal/us/372/368/case.htmlhttp://supreme.justia.com/cases/federal/us/323/37/case.html#43http://supreme.justia.com/cases/federal/us/323/37/case.htmlhttp://supreme.justia.com/cases/federal/us/166/290/case.html#308http://supreme.justia.com/cases/federal/us/166/290/case.htmlhttp://supreme.justia.com/cases/federal/us/345/629/case.html#632http://supreme.justia.com/cases/federal/us/345/629/case.htmlhttp://supreme.justia.com/cases/federal/us/401/154/case.html#162http://supreme.justia.com/cases/federal/us/401/154/case.htmlhttp://supreme.justia.com/cases/federal/us/402/99/case.html#107http://supreme.justia.com/cases/federal/us/402/99/case.htmlhttp://supreme.justia.com/cases/federal/us/389/54/case.html#57http://supreme.justia.com/cases/federal/us/389/54/case.htmlhttp://supreme.justia.com/cases/federal/us/341/56/case.htmlhttp://supreme.justia.com/cases/federal/us/300/227/case.html#240http://supreme.justia.com/cases/federal/us/300/227/case.htmlhttp://supreme.justia.com/cases/federal/us/404/244/case.html#246


3/16


Page | 3

[Footnote 3]In their memorandum on the question of mootness, counsel for the respondents unequivocally stated:"If Mr. DeFunis registers for the spring quarter under the existing order of this court during the registration period from

February 20, 1974, to March l, 1974 that registration would not be canceled unilaterally by the university regardless of theoutcome of this litigation."

[Footnote 4]In response to an inquiry from the Court, counsel for the respondents has advised that some changes have been made

in the admissions procedures "for the applicants seeking admission to the University of Washington law school for the academicyear commencing September, 1974." The respondents' counsel states, however, that

"[these] changes do not affect the policy challenged by the petitioners . . . in that . . . special consideration still is given toapplicants from 'certain ethnic groups.'"

[Footnote 5]It is suggested in dissent that "[a]ny number of unexpected events -- illness, economic necessity, even academic failure -

- might prevent his graduation at the end of the term." Postat416 U. S. 348."But such speculative contingencies afford no basisfor our passing on the substantive issues [the petitioner] would have us decide," Hall v. Beals,396 U. S. 45,396 U. S. 49 (1969),in the absence of "evidence that this is a prospect of immediacy and reality.'" Golden v. Zwickler, 394 U. S. 103,394 U. S.109(1969); Maryland Casualty Co. v. Pacific Coal & Oil Co.,312 U. S. 270,312 U. S. 273(1941).

MR. JUSTICE DOUGLAS, dissenting.I agree with MR. JUSTICE BRENNAN that this case is not moot, and, because of the significance of the issues raised I

think it is important to reach the merits.

IThe University of Washington Law School received 1,601 applications for admission to its first-year class beginning in

September, 1971. There were spaces available for only about 150 students, but in order to enroll this number, the schooleventually offered admission to 275 applicants. All applicants were put into two groups, one of which was considered under theminority admissions program. Thirty-seven of those offered admission had indicated on an optional question on their applicationthat their "dominant" ethnic origin was either black, Chicano, American Indian, or Filipino, the four groups included in the minorityadmissions program. Answers to this optional question were apparently the sole basis

Page 416 U. S. 321upon which eligibility for the program was determined. Eighteen of these 37 actually enrolled in the Law School.In general, the admissions process proceeded as follows: an index called the Predicted First Year Average (Average)

was calculated for each applicant on the basis of a formula combining the applicant's score on the Law School Admission Test(LSAT) and his grades in his last two years in college. [Footnote 2/1] On the basis of its experience with previous years'applications, the Admission Committee, consisting of faculty, administration, and students, concluded that the most outstanding

applicants were those with averages above 77; the highest average of any applicant was 81. Applicants with averages above 77were considered as their applications arrived by random distribution of their files to the members of the Committee who wouldread them and report their recommendations back to the Committee. As a result of the first three Committee meetings inFebruary, March, and April, 1971, 78 applicants from this group were admitted, although virtually no other applicants wereoffered admission this early. [Footnote 2/2]By the final conclusion of

Page 416 U. S. 322the admissions process in August, 1971, 147 applicants with averages above 77 had been admitted, including all

applicants with averages above 78, and 93 of 105 applicants with averages between 77 and 78.Also beginning early in the admissions process was the culling out of applicants with averages below 74.5. These were

reviewed by the Chairman of the Admissions Committee, who had the authority to reject them summarily without furtherconsideration by the rest of the Committee. A small number of these applications were saved by the Chairman for Committeeconsideration on the basis of information in the file indicating greater promise than suggested by the Average. Finally during theearly months, the Committee accumulated the applications of those with averages between 74.5 and 77 to be considered at a

later time when most of the applications had been received, and thus could be compared with one another. Since DeFunis'average was 76.23, he was in this middle group.Beginning in their May meeting, the Committee considered this middle group of applicants, whose folders had been

randomly distributed to Committee members for their recommendations to the Committee. Also considered at this time wereremaining applicants with averages below 74.5 who had not been summarily rejected, and some of those with averages above77 who had not been summarily admitted, but instead held for further consideration. Each Committee member would considerthe applications competitively, following rough guidelines

Page 416 U. S. 323as to the proportion who could be offered admission. After the Committee had extended offers of admission to somewhat

over 200 applicants, a waiting list was constructed in the same fashion, and was divided into four groups ranked by theCommittee's assessment of their applications. DeFunis was on this waiting list, but was ranked in the lowest quarter. He wasultimately told in August, 1971, that there would be no room for him.

Applicants who had indicated on their application forms that they were either black, Chicano, American Indian, or Filipinowere treated differently in several respects. Whatever their Averages, none were given to the Committee Chairman forconsideration of summary rejection, nor were they distributed randomly among Committee members for consideration along withthe other applications. Instead, all applications of black students were assigned separately to two particular Committee members:a first-year black law student on the Committee and a professor on the Committee who had worked the previous summer in aspecial program for disadvantaged college students considering application to the Law School. [Footnote 2/3]Applications fromamong the other three minority groups were assigned to an assistant dean who was on the Committee. The minority applications,while considered competitively with one another, were never directly compared to the remaining applications, either by thesubcommittee or by the full Committee. As in the admissions process generally, the Committee sought to find "within the minoritycategory, those persons who we thought had the highest probability of
http://supreme.justia.com/cases/federal/us/416/312/case.html#T3http://supreme.justia.com/cases/federal/us/416/312/case.html#T4http://supreme.justia.com/cases/federal/us/416/312/case.html#T5http://supreme.justia.com/cases/federal/us/416/312/case.html#348http://supreme.justia.com/cases/federal/us/396/45/case.htmlhttp://supreme.justia.com/cases/federal/us/396/45/case.html#49http://supreme.justia.com/cases/federal/us/394/103/case.htmlhttp://supreme.justia.com/cases/federal/us/394/103/case.html#109http://supreme.justia.com/cases/federal/us/394/103/case.html#109http://supreme.justia.com/cases/federal/us/312/270/case.htmlhttp://supreme.justia.com/cases/federal/us/312/270/case.html#273http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/1http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/2http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/3http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/3http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/2http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/1http://supreme.justia.com/cases/federal/us/312/270/case.html#273http://supreme.justia.com/cases/federal/us/312/270/case.htmlhttp://supreme.justia.com/cases/federal/us/394/103/case.html#109http://supreme.justia.com/cases/federal/us/394/103/case.html#109http://supreme.justia.com/cases/federal/us/394/103/case.htmlhttp://supreme.justia.com/cases/federal/us/396/45/case.html#49http://supreme.justia.com/cases/federal/us/396/45/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#348http://supreme.justia.com/cases/federal/us/416/312/case.html#T5http://supreme.justia.com/cases/federal/us/416/312/case.html#T4http://supreme.justia.com/cases/federal/us/416/312/case.html#T3


4/16


Page | 4

Page 416 U. S. 324succeeding in Law School." [Footnote 2/4]In reviewing the minority applications, the Committee attached less weight to

the Average "in making a total judgmental evaluation as to the relative ability of the particular applicant to succeed in law school."82 Wash.2d 11, 21, 507 P.2d 1169, 1175. In its publicly distributed Guide to Applicants, the Committee explained that

"[a]n applicant's racial or ethnic background was considered as one factor in our general attempt to convert formalcredentials into realistic predictions. [Footnote 2/5]"

Thirty-seven minority applicants were admitted under this procedure. Of these, 36 had Averages below DeFunis' 76.23,and 30 had Averages below 74.5, and thus would ordinarily have been summarily rejected by the Chairman. There were also 48nonminority applicants admitted who had Averages below DeFunis. Twenty-three of these were returning veterans, seen.2, supra,and 25 were others who presumably were admitted because of other

Page 416 U. S. 325factors in their applications that made them attractive candidates despite their relatively low Averages.It is reasonable to conclude from the above facts that, while other factors were considered by the Committee, and were

on occasion crucial, the Average was, for most applicants, a heavily weighted factor, and was, at the extremes, virtuallydispositive. [Footnote 2/6]A different balance was apparently struck, however, with regard to the minority applicants. Indeed, atoral argument, the respondents' counsel advised us that, were the minority applicants considered under the same procedure aswas generally used, none of those who eventually enrolled at the Law School would have been admitted.

The educational policy choices confronting a university admissions committee are not ordinarily a subject for Judicialoversight; clearly it is not for us, but for the law school, to decide which tests to employ, how heavily to weigh recommendationsfrom professors or undergraduate grades, and what level of achievement on the chosen criteria are sufficient to demonstrate that

the candidate is qualified for admission. What places this case in a special category is the fact that the school did not choose oneset of criteria but two, and then determined which to apply to a given applicant on the basis of his race. The

Page 416 U. S. 326Committee adopted this policy in order to achieve "a reasonable representation" of minority groups in the Law School. 82

Wash.2d at 20, 507 P.2d at 1175. Although it may be speculated that the Committee sought to rectify what it perceived to becultural or racial biases in the LSAT or in the candidates' undergraduate records, the record in this case is devoid of anyevidence of such bias, and the school has not sought to justify its procedures on this basis.

Although testifying that "[w]e do not have a quota . . . " the Law School dean explained that "[w]e want a reasonablerepresentation. We will go down to reach it if we can," without "taking people who are unqualified in an absolute sense. . . ."Statement of Facts 420. By "unqualified in an absolute sense," the dean meant candidates who "have no reasonable probablelikelihood of having a chance of succeeding in the study of law. . . ." Ibid.But the dean conceded that, in "reaching," the schooldoes take "some minority students who at least, viewed as a group, have a less such likelihood than the majority student grouptaken as a whole." Id.at 423.

"Q. Of those who have made application to go to the law school, I am saying you are not taking the best qualified?""A. In total?""Q. In total.""A. In using that definition, yes."Id.at 423-424.It thus appears that, by the Committee's own assessment, it admitted minority students who, by the tests given, seemed

less qualified than some white students who were not accepted, in order to achieve a "reasonable representation." In this regard,it may be pointed out that, for the year 1969-1970 -- two years before the class to which DeFunis was seeking admission -- theLaw School

Page 416 U. S. 327reported an enrollment of eight black students out of a total of 356. [Footnote 2/7]Defendants' Ex. 7. That percentage,

approximately 2.2%, compares to a percentage of blacks in the population of Washington of approximately 2.1%. [Footnote 2/8]II

There was a time when law schools could follow the advice of Wigmore, who believed that "the way to find out whether aboy has the makings of a competent lawyer is to see what he can do in a first year of law studies." Wigmore, JuristicPsychopoyemetrology -- Or, How to Find Out Whether a Boy Has the Makings of a Lawyer, 24 Ill.L.Rev. 454, 46364 (1929). Inthose days, there were enough spaces to admit every applicant who met minimal credentials, and they all could be given theopportunity to prove themselves at law school. But by the 1920's, many law schools found that they could not admit all minimallyqualified applicants, and some selection process began. [Footnote 2/9] The pressure to use some kind of admissions testmounted, and a number of schools instituted them. One early precursor to the modern day LSAT was the Ferson-Stoddard LawAptitude examination. Wigmore conducted his own study of that test with 50 student volunteers, and concluded that it "had nosubstantial practical value." Id.at 463. But his conclusions were not accepted, and the harried law

Page 416 U. S. 328schools still sought some kind of admissions test which would simplify the process of judging applicants, and, in 1948,

the LSAT was born. It has been with us ever since. [Footnote 2/10]The test purports to predict how successful the applicant will be in his first year of law school, and consists of a few

hours' worth of multiple choice questions. But the answers the student can give to a multiple choice question are limited by thecreativity and intelligence of the test-maker; the student with a better or more original understanding of the problem than the test-maker may realize that none of the alternative answers are any good, but there is no way for him to demonstrate hisunderstanding.

"It is obvious from the nature of the tests that they do not give the candidate a significant opportunity to express himself.If he is subtle in his choice of answers it will go against him; and yet there is no other way for him to show any individuality. If heis strong-minded, nonconformist, unusual, original, or creative -- as so many of the truly important people are -- he must stifle hisimpulses and conform as best he can to the norms that the multiple choice testers set up in their unimaginative, scientific way.
http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/4http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/5http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/6http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/7http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/8http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/9http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/10http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/10http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/9http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/8http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/7http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/6http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/5http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/4


5/16


Page | 5

The more profoundly gifted the candidate is, the more his resentment will rise against the mental strait jacket into which thetesters would force his mind."

B. Hoffmann, The Tyranny of Testing 91-92 (1962).Those who make the tests and the law schools which use them point, of course, to the high correlations between the test

scores and the grades at law school the first year.E.g.,Winterbottom, Comments on "A Study of the Criteria for Legal Educationand Admission to the

Page 416 U. S. 329Bar," An Article by Dr. Thomas M. Goolsby, Jr., 21 J.Legal Ed. 75 (1968). Certainly the tests do seem to do better than

chance. But they do not have the value that their deceptively precise scoring system suggests. The proponents' own data showthat, for example, most of those scoring in the bottom 20% on the test do better than that, in law school -- indeed, six of every100 of them will be in the top20 of their law school class. Id.at 79. And no one knows how many of those who were not admittedbecause of their test scores would, in fact, have done well were they given the chance. There are many relevant factors, such asmotivation, cultural backgrounds of specific minorities that the test cannot measure, and they inevitably must impair its value as apredictor. [Footnote 2/11]Of course, the law school that admits only those with the highest test scores finds that, on the averagethey do much better, and thus the test is a convenient tool for the admissions committee. The price is paid by the able studentwho, for unknown reasons, did not achieve that high score -- perhaps even the minority with a different cultural background.Some tests, at least in the past, have been aimed at eliminating Jews.

The school can safely conclude that the applicant with a score of 750 should be admitted before one with a score of 500.The problem is that, in many cases, the choice will be between 643 and 602 or 574 and 528. The numbers create an illusion ofdifference standing to overwhelm other factors.

"The wiser testers are well aware of the defects of the multiple choice format and the danger of placing reliance on anyone method of assessment to the exclusion of all others. What is distressing is how little their caveats have impressed the peoplewho succumb to the propaganda of the testmakers

Page 416 U. S. 330and use these tests mechanically as though they were a valid substitute for judgment."Hoffmann, supra,at 215.Of course, the tests are not the only thing considered; here, they were combined with the pre-law grades to produce a

new number called the Average. The grades have their own problems; one school's A is another school's C. And even to theextent that this formula predicts law school grades, its value is limited. The law student with lower grades may, in the long pull ofa legal career, surpass those at the top of the class.

"[L]aw school admissions criteria have operated within a hermetically sealed system; it is now beginning to leak. Thetraditional combination of LSAT and GPA [undergraduate grade point average] may have provided acceptable predictors of likelyperformance in law school in the past. . . . [But] [t]here is no clear evidence that the LSAT and GPA provide particularly good

evaluators of the intrinsic or enriched ability of an individual to perform as a law student or lawyer in a functioning societyundergoing change. Nor is there any clear evidence that grades and other evaluators of law school performance, and the barexamination, are particularly good predictors of competence or success as a lawyer."

Rosen, Equalizing Access to Legal Education: Special Programs for Law Students Who Are Not Admissible byTraditional Criteria, 1970 U.Tol.L.Rev. 321, 332-333.

But, by whatever techniques, the law school must make choices. Neither party has challenged the validity of the Averageemployed here as an admissions tool, and therefore consideration of its possible deficiencies is not presented as an issue. TheLaw School presented no evidence to show that adjustments in the process employed were used in order validly to compareapplicants of different races; instead, it chose to avoid making such comparisons. Finally,

Page 416 U. S. 331although the Committee did consider other information in the files of all applicants, the Law School has made no effort to

show that it was because of these additional factors that it admitted minority applicants who would otherwise have been rejected.To the contrary, the school appears to have conceded that, by its own assessment -- taking all factors into account -- it admitted

minority applicants who would have been rejected had they been white. We have no choice but to evaluate the Law School'scase as it has been made.IIIThe Equal Protection Clause did not enact a requirement that law schools employ as the sole criterion for admissions a

formula based upon the LSAT and undergraduate grades, nor does it prohibit law schools from evaluating an applicant's priorachievements in light of the barriers that he had to overcome. A black applicant who pulled himself out of the ghetto into a juniorcollege may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissionscommittee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades atHarvard. That applicant would be offered admission not because he is black, but because, as an individual, he has shown he hasthe potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him. Because ofthe weight of the prior handicaps, that black applicant may not realize his full potential in the first year of law school, or even inthe full three years, but in the long pull of a legal career, his achievements may far outstrip those of his classmates whose earlierrecords appeared superior by conventional criteria. There is currently no test available to the Admissions

Page 416 U. S. 332Committee that can predict such possibilities with assurance, but the Committee may nevertheless seek to gauge it as

best it can, and weigh this factor in its decisions. Such a policy would not be limited to blacks, or Chicanos or Filipinos, orAmerican Indians, although undoubtedly groups such as these may in practice be the principal beneficiaries of it. But a poorAppalachian white, or a second generation Chinese in San Francisco, or some other American whose lineage is so diverse as todefy ethnic labels, may demonstrate similar potential, and thus be accorded favorable consideration by the Committee.

The difference between such a policy and the one presented by this case is that the Committee would be makingdecisions on the basis of individual attributes, rather than according a preference solely en the basis of race. To be sure, theracial preference here was not absolute -- the Committee did not admit all applicants from the four favored groups. But it did
http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/11http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/11


6/16


Page | 6

accord all such applicants a preference by applying, to an extent not precisely ascertainable from the record, different standardsby which to judge their applications, with the result that the Committee admitted minority applicants who, in the school's ownjudgment, were less promising than other applicants who were rejected. Furthermore, it is apparent that, because the AdmissionsCommittee compared minority applicants only with one another, it was necessary to reserve some proportion of the class forthem, even if, at the outset, a precise number of places were not set aside. [Footnote 2/12]That proportion, apparently 15% to

Page 416 U. S. 33320%, was chosen because the school determined it to be "reasonable," [Footnote 2/13] although no explanation is

provided as to how that number, rather than some other, was found appropriate. Without becoming embroiled in a semanticdebate over whether this practice constitutes a "quota," it is clear that, given the limitation on the total number of applicants whocould be accepted, this policy did reduce the total number of places for which DeFunis could compete -- solely on account of hisrace. Thus, as the Washington Supreme Court concluded, whatever label one wishes to apply to it, "the minority admissionspolicy is certainly not benign with respect to nonminority students who are displaced by it." 82 Wash.2d at 32, 507 P.2d at 1182.A finding that the state school employed a racial classification in selecting its students subjects it to the strictest scrutiny underthe Equal Protection Clause.

The consideration of race as a measure of an applicant's qualification normally introduces a capricious and irrelevantfactor working an invidious discrimination,Anderson v. Martin,375 U. S. 399,375 U. S. 402;Loving v. Virginia,388 U. S. 1,388U. S. 10;Harper v. Virginia Board of Elections,383 U. S. 663,383 U. S. 668.Once race is a starting point, educators and courtsare immediately embroiled in competing claims of different racial and ethnic groups that should make difficult, manageablestandards consistent

Page 416 U. S. 334

with the Equal Protection Clause."The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial

discrimination in the States."Loving, supra,at 388 U. S. 10. The Law School's admissions policy cannot be reconciled with that purpose, unless

cultural standards of a diverse, rather than a homogeneous society, are taken into account. The reason is that professionalpersons, particularly lawyers, are not selected for life in a computerized society. The Indian who walks to the beat of Chief Seattleof the Muckleshoot Tribe in Washington [Footnote 2/14]has a different culture from examiners at law schools.

The key to the problem is the consideration of each application in a racially neutral way.Since the LSAT reflectsquestions touching on cultural backgrounds, the Admissions Committee acted properly, in my view, in setting minorityapplications apart for separate processing. These minorities have cultural backgrounds that are vastly different from the dominantCaucasian. Many Eskimos, American Indians, Filipinos, Chicanos, Asian Indians, Burmese, and Africans come from suchdisparate backgrounds that a test sensitively tuned for most applicants would be wide of the mark for many minorities.

The melting pot is not designed to homogenize people, making them uniform in consistency. The melting pot, as I

understand it, is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag. See2 S.Morison & H. Commager, The Growth of the American Republic, c. VIII (4th ed.1950). Minorities in our midst who are to serveactively in our public affairs should be chosen on talent and character alone, not on cultural orientation or leanings.

Page 416 U. S. 335I do know, coming as I do from Indian country in Washington, that many of the young Indians know little about Adam

Smith or Karl Marx, but are deeply imbued with the spirit and philosophy of Chief Robert B. Jim of the Yakimas, Chief Seattle ofthe Muckleshoots, and Chief Joseph of the Nez Perce which offer competitive attitudes towards life, fellow man, and nature.[Footnote 2/15]

I do not know the extent to which blacks in this country are imbued with ideas of African Socialism. [Footnote 2/16]Leopold Senghor and Sekou Toure, the most articulate of African leaders, have held that modern African political philosophy isnot oriented either to Marxism or to capitalism. [Footnote 2/17]How far the reintroduction into educational curricula of ancientAfrican art and history has reached the minds of young Afro-Americans I do not know. But at least as respects Indians, blacks,and Chicanos -- as well as those from Asian cultures -- I think a separate classification of these applicants is warranted, lest race

be a subtle force in eliminating minority members because of cultural differences.Insofar as LSAT's reflect the dimensions and orientation of the Organization Man, they do a disservice to minorities. Ipersonally know that admissions tests were once used to eliminate Jews. How many other minorities they aim at, I do not know.My reaction is that the presence of an LSAT is sufficient warrant for a school to put racial minorities into a separate class in orderbetter to probe their capacities and potentials.

The merits of the present controversy cannot, in my view, be resolved on this record. A trial wouldPage 416 U. S. 336involve the disclosure of hidden prejudices, if any, against certain minorities and the manner in which substitute

measurements of one's talents and character were employed in the conventional tests. I could agree with the majority of theWashington Supreme Court only if, on the record, it could be said that the Law School's selection was racially neutral. The case,in my view, should be remanded for a new trial to consider, inter alia,whether the established LSAT's should be eliminated so faras racial minorities are concerned.

This does not mean that a separate LSAT must be designed for minority racial groups, although that might be apossibility. The reason for the separate treatment of minorities as a class is to make more certain that racial factors do notmilitate against an applicant or on his behalf.[Footnote 2/18]

There is no constitutional right for any race to be preferred. The years of slavery did more than retard the progress ofblacks. Even a greater wrong was done the whites by creating arrogance instead of humility, and by encouraging the growth ofthe fiction of a superior race.

Page 416 U. S. 337There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of

that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right tohave his application considered on its individual merits in a racially neutral manner.
http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/12http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/13http://supreme.justia.com/cases/federal/us/375/399/case.htmlhttp://supreme.justia.com/cases/federal/us/375/399/case.html#402http://supreme.justia.com/cases/federal/us/388/1/case.htmlhttp://supreme.justia.com/cases/federal/us/388/1/case.html#10http://supreme.justia.com/cases/federal/us/388/1/case.html#10http://supreme.justia.com/cases/federal/us/383/663/case.htmlhttp://supreme.justia.com/cases/federal/us/383/663/case.html#668http://supreme.justia.com/cases/federal/us/388/1/case.html#10http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/14http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/15http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/16http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/17http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/18http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/18http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/17http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/16http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/15http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/14http://supreme.justia.com/cases/federal/us/388/1/case.html#10http://supreme.justia.com/cases/federal/us/383/663/case.html#668http://supreme.justia.com/cases/federal/us/383/663/case.htmlhttp://supreme.justia.com/cases/federal/us/388/1/case.html#10http://supreme.justia.com/cases/federal/us/388/1/case.html#10http://supreme.justia.com/cases/federal/us/388/1/case.htmlhttp://supreme.justia.com/cases/federal/us/375/399/case.html#402http://supreme.justia.com/cases/federal/us/375/399/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F2/13http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/12


7/16


Page | 7

The slate is not entirely clean. First, we have held that pro rata representation of the races is not required either onjuries, see Cassell v. Texas,339 U. S. 282,339 U. S. 286-287, or in public schools, Swann v. Charlotte-Mecklenburg Board ofEducation,402 U. S. 1,402 U. S. 24. Moreover, in Hughes v. Superior Court,339 U. S. 460, we reviewed the contemptconvictions of pickets who sought by their demonstration to force an employer to prefer Negroes to whites in his hiring of clerks,in order to ensure that 50% of the employees were Negro. In finding that California could constitutionally enjoin the picketingthere involved, we quoted from the opinion of the California Supreme Court, which noted that the pickets would

"'make the right to work for Lucky dependent not on fitness for the work nor on an equal right of all, regardless of race, tocompete in an open market, but rather on membership in a particular race. If petitioners were upheld in their demand, then otherraces, white, yellow, brown, and red, would have equal rights to demand discriminatory hiring on a racial basis.'"

Id.at339 U. S. 463-464. We then noted that"[t]o deny to California the right to ban picketing in the circumstances of this case would mean that there could be no

prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, ofPoles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the

Page 416 U. S. 338numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in

various cities."Id.at339 U. S. 464.The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar

dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded,the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a

member of a favored group. There is no assurance that a common agreement can be reached, and first the schools and then thecourts will be buffeted with the competing claims. The University of Washington included Filipinos, but excluded Chinese andJapanese; another school may limit its program to blacks, or to blacks and Chicanos. Once the Court sanctioned racialpreferences such as these, it could not then wash its hands of the matter, leaving it entirely in the discretion of the school, forthen we would have effectively overruledSweatt v. Painter,339 U. S. 629,and allowed imposition of a "zero" allocation. [Footnote2/19]But what standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the Universityof Washington to extend the same privileges to his group? The Committee might conclude that the population of Washington isnow 2% Japanese, and that Japanese also constitute 2% of the

Page 416 U. S. 339Bar, but that, had they not been handicapped by a history of discrimination, Japanese would now constitute 5% of the

Bar, or 20%. Or, alternatively, the Court could attempt to assess how grievously each group has suffered from discrimination, andallocate proportions accordingly; if that were the standard, the current University of Washington policy would almost surely fall,for there is no Western State which can claim that it has always treated Japanese and Chinese in a fair and evenhanded

manner.See, e.g., Yick Wo v. Hopkins,118 U. S. 356;Terrace v. Thompson,263 U. S. 197;Oyama v. California,332 U. S. 633.This Court has not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U. S. 214,and Hirabayashi v. United States,320 U. S. 81,involving curfews and relocations imposed upon Japanese-Americans. [Footnote2/20]

Page 416 U. S. 340Nor, obviously, will the problem be solved if, next year, the Law School included only Japanese and Chinese, for then

Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and all other groups which form this diverse Nationwould have just complaints.

The key to the problem is consideration of such applications in a racially neutral way.Abolition of the LSAT would be astart. The invention of substitute tests might be made to get a measure of an applicant's cultural background, perception, abilityto analyze, and his or her relation to groups. They are highly subjective, but, unlike the LSAT, they are not concealed, but in theopen. A law school is not bound by any legal principle to admit students by mechanical criteria which are insensitive to thepotential of such an applicant which may be realized in a more hospitable environment. It will be necessary under such an

approach to put more effort into assessing each individual than is required when LSAT scores and undergraduate gradesdominate the selection process. Interviews with the applicant and others who know him is a time-honored test. Some schoolscurrently run summer programs in which potential students who likely would be bypassed under conventional admissions criteriaare given the opportunity to try their hand at law courses, [Footnote 2/21]and certainly their performance in such programs couldbe weighed heavily. There is, moreover, no bar to considering an individual's prior achievements in

Page 416 U. S. 341light of the racial discrimination that barred his way, as a factor in attempting to assess his true potential for a successful

legal career. Nor is there any bar to considering on an individual basis, rather than according to racial classifications, thelikelihood that a particular candidate will more likely employ his legal skills to service communities that are not now adequatelyrepresented than will competing candidates. Not every student benefited by such an expanded admissions program would fallinto one of the four racial groups involved here, but it is no drawback that other deserving applicants will also get an opportunitythey would otherwise have been denied. Certainly such a program would substantially fulfill the Law School's interest in giving amore diverse group access to the legal profession. Such a program might be less convenient administratively than simply sortingstudents by race, but we have never held administrative convenience to justify racial discrimination.

The argument is that a "compelling" state interest can easily justify the racial discrimination that is practiced here. Tomany, "compelling" would give members of one race even more than pro ratarepresentation. The public payrolls might then bedeluged, say, with Chicanos, because they are, as a group, the poorest of the poor and need work more than others, leavingdesperately poor individual blacks and whites without employment. By the same token, large quotas of blacks or browns could beadded to the Bar, waiving examinations required of other groups, so that it would be better racially balanced. [Footnote 2/22]

Page 416 U. S. 342The State, however, may not proceed by racial classification to force strict population equivalencies for every group in

every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not
http://supreme.justia.com/cases/federal/us/339/282/case.htmlhttp://supreme.justia.com/cases/federal/us/339/282/case.html#286http://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.html#24http://supreme.justia.com/cases/federal/us/339/460/case.htmlhttp://supreme.justia.com/cases/federal/us/339/460/case.html#463http://supreme.justia.com/cases/federal/us/339/460/case.html#464http://supreme.justia.com/cases/federal/us/339/629/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F2/19http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/19http://supreme.justia.com/cases/federal/us/118/356/case.htmlhttp://supreme.justia.com/cases/federal/us/263/197/case.htmlhttp://supreme.justia.com/cases/federal/us/332/633/case.htmlhttp://supreme.justia.com/cases/federal/us/323/214/case.htmlhttp://supreme.justia.com/cases/federal/us/320/81/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F2/20http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/20http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/21http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/22http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/22http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/21http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/20http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/20http://supreme.justia.com/cases/federal/us/320/81/case.htmlhttp://supreme.justia.com/cases/federal/us/323/214/case.htmlhttp://supreme.justia.com/cases/federal/us/332/633/case.htmlhttp://supreme.justia.com/cases/federal/us/263/197/case.htmlhttp://supreme.justia.com/cases/federal/us/118/356/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F2/19http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/19http://supreme.justia.com/cases/federal/us/339/629/case.htmlhttp://supreme.justia.com/cases/federal/us/339/460/case.html#464http://supreme.justia.com/cases/federal/us/339/460/case.html#463http://supreme.justia.com/cases/federal/us/339/460/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.html#24http://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/339/282/case.html#286http://supreme.justia.com/cases/federal/us/339/282/case.html


8/16


Page | 8

their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washingtoncannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It shouldbe to produce good lawyers for Americans, and not to place First Amendment barriers against anyone. [Footnote 2/23]That isthe point at the heart of all our

Page 416 U. S. 343school desegregation cases, from Brown v. Board of Education,347 U. S. 483,throughSwann v. Charlotte-Mecklenburg

Board of Education,402 U. S. 1. A segregated admissions process creates suggestions of stigma and caste no less than asegregated classroom, and, in the end, it may produce that result despite its contrary intentions. One other assumption must beclearly disapproved: that blacks or browns cannot make it on their individual merit. That is a stamp of inferiority that a State is notpermitted to place on any lawyer.

If discrimination based on race is constitutionally permissible when those who hold the reins can come up with"compelling" reasons to justify it, then constitutional guarantees acquire an accordion-like quality. Speech is closely brigaded withaction when it triggers a fight, Chaplinsky v. New Hampshire,315 U. S. 568,as shouting "fire" in a crowded theater triggers a riot.It may well be that racial strains, racial susceptibility to certain diseases, racial sensitiveness to environmental conditions thatother races do not experience, may, in an extreme situation, justify differences in racial treatment that no fair-minded personwould call "invidious" discrimination. Mental ability is not in that category. All races can compete fairly at all professional levels.So

Page 416 U. S. 344far as race is concerned, any state-sponsored preference to one race over another in that competition is, in my view,

"invidious" and violative of the Equal Protection Clause.

The problem tendered by this case is important and crucial to the operation of our constitutional system, and educatorsmust be given leeway. It may well be that a whole congeries of applicants in the marginal group defy known methods ofselection. Conceivably, an admissions committee might conclude that a selection by lot of, say, the last 20 seats is the only fairsolution. Courts are not educators; their expertise is limited; and our task ends with the inquiry whether, judged by the mainpurpose of the Equal Protection Clause -- the protection against racial discrimination [Footnote 2/24] -- there has been an"invidious" discrimination.

We would have a different case if the suit were one to displace the applicant who was chosen in lieu of DeFunis. Whatthe record would show concerning his potentials would have to be considered and weighed. The educational decision, providedproper guidelines were used, would reflect an expertise that courts should honor. The problem is not tendered here, because thephysical facilities were apparently adequate to take DeFunis in addition to the others. My view is only that I cannot say by thetests used and applied he was invidiously discriminated against because of his race.

I cannot conclude that the admissions procedure of the Law School of the University of Washington that excludedDeFunis is violative of the Equal Protection Clause of the Fourteenth Amendment. The judgment of the Washington Supreme

Court should be vacated, and the case remanded for a new trial.Page 416 U. S. 345|416 U.S. 312app|APPENDIX TO OPINION OF DOUGLAS, J., DISSENTINGThe following are excerpts from the Law School's current admissions policy, as provided to the Court by counsel for the

respondents.ADMISSIONSA. Policy Statement Regarding Admission to Entering Classes of Juris Doctor Program -- Adopted by the Law Faculty

December 4, 1973. 1. The objectives of the admissions program are to select and admit those applicants who have the best prospect of

high quality academic work at the law school and, in the minority admissions program described below, the further objective therestated.

2. In measuring academic potential, the law school relies primarily on the undergraduate grade-point average and the

performance on the Law School Admission Test (LSAT). The weighting of these two indicators is determined statistically byreference to past experience at this school. For most applicants, the resulting applicant ranking is the most nearly accurate of allavailable measures of relative academic potential. In truly exceptional cases, i.e.,those in which the numerical indicators clearlyappear to be an inaccurate measure of academic potential, the admission decision indicated by them alone may be altered by aconsideration of the factors listed below. The number of these truly exceptional cases in any particular year should fallsomewhere from zero to approximately forty. These factors are used, however, only as an aid in assessing the applicant'sacademic potential in its totality, without undue emphasis or reliance upon one or a few, and without an attempt to quantify inadvance the strength of their

Page 416 U. S. 346application, singly or as a whole, in a particular case. They are:a) the difficulty or ease of the undergraduate curriculum track pursued;b) the demanding or non-demanding quality of the undergraduate school or department;c) the attainment of an advanced degree, the nature thereof, and difficulty or ease of its attainment;d) the applicant's pursuits subsequent to attainment of the undergraduate degree and the degree of success therein, as

bearing on the applicant's academic potential;e) the possibility that an applicant many years away from academic work may do less well on the LSAT than his or her

counterpart presently or recently in academic work;f) substantial change in mental or physical health that indicates prospect for either higher or lower quality of academic

work;g) substantial change in economic pressures or other circumstances that indicates prospect for either higher or lower

quality of academic work;
http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/23http://supreme.justia.com/cases/federal/us/347/483/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/315/568/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F2/24http://supreme.justia.com/cases/federal/us/416/312/case.html#F2/24http://supreme.justia.com/cases/federal/us/315/568/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/347/483/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#F2/23


9/16


Page | 9

h) exceptionally good or bad performance upon the writing test ingredient of the LSAT, if the current year's weighting ofthe numerical indicators does not otherwise take the writing score into account;

i) the quality and strength of recommendations bearing upon the applicant's academic potential;j) objective indicators of motivation to succeed at the academic study of law;k) variations in the level of academic achievement over time; andl) any other indicators that serve the objective stated above.* * * * 6. Because certain ethnic groups in our societyPage 416 U. S. 347have historically been limited in their access to the legal profession, and because the resulting underrepresentation can

affect the quality of legal services available to members of such groups, as well as limit their opportunity for full participation inthe governance of our communities, the faculty recognizes a special obligation in its admissions policy to contribute to thesolution of the problem.

Qualified minority applicants are therefore admitted under the minority admissions program in such number that theentering class will have a reasonable proportion of minority persons, in view of the obligation stated above and of the overallobjective of the law school to provide legal education for qualified persons generally. For the purpose of determining the numberto be specially admitted under the program, and not as a ceiling on minority admissions generally, the faculty currently believesthat approximately 15 to 20 percent is such a reasonable proportion if there are sufficient qualified applicants available. Under theminority admissions program, admission is offered to those applicants who have a reasonable prospect of academic success atthe law school, determined in each case by considering the numerical indicators along with the listed factors in Section 2, above,

but without regard to the restriction upon number contained in that section.No particular internal percentage or proportion among various minority groups in the entering class is specified; rather,

the law school strives for a reasonable internal balance given the particular makeup of each year's applicant population.As to some or all ethnic groups within the scope of the minority admissions program, it may be appropriate to give a

preference in some degree to residents of the state; that determination is made each year in view ofPage 416 U. S. 348all the particulars of that year's situation, and the preference is given when necessary to meet some substantial local

need for minority representation.[Footnote 2/1]The grades are calculated on a conventional 4.0 scale, and the LSAT is scored on a scale ranging from 200 to 800. A

Writing Test given on the same day as the LSAT and administered with it is also included in the formula; it is scored on a scale of20 to 80. The Admissions Committee combines these scores into the Average by calculating the sum of 51.3, 3.4751 x thegrade-point average, .0159 x LSAT score, and .0456 x the Writing Test score. App. 24. For a brief discussion of the use of the

LSAT in combination with undergraduate grades to predict law school success, seeWinterbottom, Comments on "A Study of theCriteria for Legal Education and Admission to the Bar," An Article by Dr. Thomas M. Goolsby, Jr., 21 J.Legal Ed. 75 (1968).

[Footnote 2/2]The only other substantial group admitted at this point were 19 "military" applicants. These were students who had

previously been admitted to the school but who had either been unable to come, or forced to leave during their tenure, becauseof the draft. They were given preferential treatment upon reapplication after completing their military obligation. Since neitherparty has raised any issue concerning this group of applicants, the remaining consideration of the admissions procedure will notdiscuss them. Four minority applicants were also admitted at this time, although none apparently had scores above 77. App. 31.Their admission was presumably pursuant to the procedure for minority applicants described below.

[Footnote 2/3]This was a Council on Legal Education Opportunities program, federally funded by the Office of Economic Opportunity

and sponsored by the American Bar Association, the Association of American Law Schools, the National Bar Association, andthe Law School Admissions Council.

[Footnote 2/4]Testimony of the Chairman of the Admissions Committee, Statement of Facts 353.[Footnote 2/5]The Guide to Applicants explained:"We gauged the potential for outstanding performance in law school not only from the existence of high test scores and

grade point averages, but also from careful analysis of recommendations, the quality of work in difficult analytical seminars,courses, and writing programs, the academic standards of the school attended by the applicant, the applicant's graduate work (ifany), and the nature of the applicant's employment (if any), since graduation."

"An applicant's ability to make significant contributions to law school classes and the community at large was assessedfrom such factors as his extracurricular and community activities, employment, and general background."

"We gave no preference to, but did not discriminate against, either Washington residents or women in making ourdeterminations. An applicant's racial or ethnic background was considered as one factor in our general attempt to convert formalcredentials into realistic predictions."

82 Wash.2d 11, 18-19, 507 P.2d 1169, 1174.[Footnote 2/6]The respondents provided the following table in response to an interrogatory during the proceedings in the state court:Predicted Number of NumberFirst Year Averages Applications Received Accepted81 1 180 2 279 11 1178 42 42
http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/1http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/2http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/3http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/4http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/5http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/6http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/6http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/5http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/4http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/3http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/2http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/1


10/16


Page | 10

77 105 9376 169 5375 210 22App. 34.[Footnote 2/7]Although there is apparently no evidence in point in the record, respondents suggest that, at least some of these eight

students were also admitted on a preferential basis. Brief for Respondents 40 n. 27.[Footnote 2/8]United States Bureau of the Census, Census of Population: 1970, General Population Characteristics, Washington, Final

Report PC(1) -- B49, Table 18.[Footnote 2/9]For a history of gradual acceptance among law schools of standardized tests as an admission tool, seeRamsey, Law

School Admissions: Science, Art, or Hunch?, 12 J. Legal Ed. 503 (1960).[Footnote 2/10]For a survey of the use of the LSAT by American law schools as of 1965, seeLunneborg & Radford, The LSAT: A Survey

of Actual Practice, 18 J.Legal Ed. 313 (1966).[Footnote 2/11]Rock, Motivation, Moderators, and Test Bias, 1970 U.Tol.L.Rev. 527, 535.[Footnote 2/12]At the outset, the Committee may have chosen only a range with the precise number to be determined later in the

process as the total number of minority applicants, and some tentative assessment of their quality, could be determined. Thisappears to be the current articulated policy, seeApp. to this opinion 6, and we are advised by the respondents that 6"represents a more formal statement of the policy which was in effect in 1971 . . . , but does not represent any change in policy."Letter to the Court dated March 19, 1974, p. 1. The fact that the Committee did not set a precise number in advance is obviouslyirrelevant to the legal analysis. Nor does it matter that there is some minimal level of achievement below which the Committeewould not reach in order to achieve its stated goal as to the proportion of the class reserved for minority groups, so long as theCommittee was willing, in order to achieve that goal, to admit minority applicants who, in the Committee's own judgment, wereless qualified than other rejected applicants and who would not otherwise have been admitted.

[Footnote 2/13]Seen. 12, supra,and App. to this opinion 6.[Footnote 2/14]Uncommon Controversy, Report Prepared for American Friends Service Committee 29-30 (1970).[Footnote 2/15]

SeeC. Fee, Chief Joseph, The Biography of a Great Indian (1936)[Footnote 2/16]SeeF. Brockway, African Socialism (1963); African Socialism (W. Friedland & C. Rosberg ed.1964).[Footnote 2/17]SeeL. Senghor, On African Socialism (M. Cook ed.1964).[Footnote 2/18]We are not faced here with a situation where barriers are overtly or covertly put in the path of members of one racial

group which are not required by others. There was also no showing that the purpose of the school's policy was to eliminatearbitrary and irrelevant barriers to entry by certain racial groups into the legal profession groups.Griggs v. Duke Power Co.,401U. S. 424. In Swann v. Charlotte-Mecklenburg Board of Education,402 U. S. 1,402 U. S. 16, we stated that, as a matter ofeducational policy, school authorities could, within their broad discretion, specify that each school within its district have aprescribed ratio of Negro to white students reflecting the proportion for the district as a whole, in order to disestablish a dualschool system. But there is a crucial difference between the policy suggested in Swann and that under consideration here:

the Swannpolicy would impinge on no person's constitutional rights, because no one would be excluded from a public schooland no one has a right to attend a segregated public school.[Footnote 2/19]Sweatt held that a State could not justify denying a black admission to its regular law school by creating a new law

school for blacks. We held that the new law school did not meet the requirements of "equality" set forth in Plessy v.Ferguson,163 U. S. 537.

The student, we said, was entitled to"legal education equivalent to that offered by the State to students of other races. Such education is not available to him

in a separate law school as offered by the State."339 U.S. at339 U. S. 635.[Footnote 2/20]Those cases involved an exercise of the war power, a great leveler of other rights. Our Navy was sunk at Pearl Harbor,

and no one knew where the Japanese fleet was. We were advised on oral argument that, if the Japanese landed troops on ourwest coast, nothing could stop them west of the Rockies. The military judgment was that, to aid in the prospective defense of thewest coast, the enclaves of Americans of Japanese ancestry should be moved inland, lest the invaders, by donning civilianclothes, would wreak even more serious havoc on our western ports. The decisions were extreme, and went to the verge ofwartime power; and they have been severely criticized. It is, however, easy in retrospect to denounce what was done, as thereactually was no attempted Japanese invasion of our country. While our Joint Chiefs of Staff were worrying about Japanesesoldiers landing on the west coast, they actually were landing in Burma and at Kota Bharu in Malaya. But those making plans fordefense of the Nation had no such knowledge, and were planning for the worst. Moreover, the day we decided Korematsu,wealso decided Ex parte Endo,323 U. S. 283,holding that, while evacuation of the Americans of Japanese ancestry was allowableunder extreme war conditions, their detention after evacuation was not. We said:
http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/7http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/8http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/9http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/10http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/11http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/12http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/13http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/14http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/15http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/16http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/17http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/18http://supreme.justia.com/cases/federal/us/401/424/case.htmlhttp://supreme.justia.com/cases/federal/us/401/424/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/402/1/case.html#16http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/19http://supreme.justia.com/cases/federal/us/163/537/case.htmlhttp://supreme.justia.com/cases/federal/us/339/629/case.html#635http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/20http://supreme.justia.com/cases/federal/us/323/283/case.htmlhttp://supreme.justia.com/cases/federal/us/323/283/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#T2/20http://supreme.justia.com/cases/federal/us/339/629/case.html#635http://supreme.justia.com/cases/federal/us/163/537/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#T2/19http://supreme.justia.com/cases/federal/us/402/1/case.html#16http://supreme.justia.com/cases/federal/us/402/1/case.htmlhttp://supreme.justia.com/cases/federal/us/401/424/case.htmlhttp://supreme.justia.com/cases/federal/us/401/424/case.htmlhttp://supreme.justia.com/cases/federal/us/416/312/case.html#T2/18http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/17http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/16http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/15http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/14http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/13http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/12http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/11http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/10http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/9http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/8http://supreme.justia.com/cases/federal/us/416/312/case.html#T2/7


11/16


Page | 11

"A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart andmind, not of race, creed, or color. He who is loyal is, by definition, not a spy or a saboteur. When the power to detain is derivedfrom the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective isunauthorized."

Id.at323 U. S. 302.[Footnote 2/21]Seen. 3, supra.[Footnote 2/22]In Johnson v. Committee on Examinations, 407 U.S. 915, we denied certiorari in a case presenting a similar issue.

There, the petitioner claimed that the bar examiners reconsidered the papers submitted by failing minority applicants whosescores were close to the cutoff point, with the result that some minority applicants were admitted to the Bar although they initiallyhad examination scores lower than those of white applicants who failed.

As the Arizona Supreme Court denied Johnson admission summarily, in an original proceeding, there were no judicialfindings either sustaining or rejecting his factual claims of racial bias, putting the case in an awkward posture for review here.Johnson subsequently brought a civil rights action in Federal District Court, seeking both damages and injunctive relief. TheDistrict Court dismissed the action, and the Court of Appeals affirmed, holding that the lower federal courts did not havejurisdiction to review the decisions of the Arizona Supreme Court on admissions to the state Bar. Johnson then sought reviewhere, and we denied his motion for leave to file a petition for mandamus, prohibition and/or certiorari on February 19,1974. Johnson v. Wilmer,415 U.S. 911. Thus, in the entire history of the case, no court had ever actually sustained Johnson'sfactual contentions concerning racial bias in the bar examiners' procedures. DeFunis thus appears to be the first case here

squarely presenting the problem.[Footnote 2/23]Underlying all cultural background tests are potential ideological issues that have plagued bar associations and the

courts. In re Summers,325 U. S. 561, involved the denial of the practice of law to a man who could not conscientiously beararms. The vote against him was five to four. Konigsberg v. State Bar,353 U. S. 252, followed, after remand, by Konigsberg v.State Bar, 366 U. S. 36, resulted in barring one from admission to a state bar because of his refusal to answer questionsconcerning Communist Party membership. He, too, was excluded five to four. The petitioner inSchware v. Board of BarExaminers,353 U. S. 232,was, however, admitted to practice even though he had, about 10 years earlier, been a member of theCommunist Party. But In re Anastaplo,366 U. S. 82, a five-to-four decision, barred a man from admission to a state bar notbecause he invoked the Fifth Amendment when asked about membership in the Communist Party, but because he asserted thatthe First and Fourteenth Amendments protected him from that inquiry. Baird v. State Bar of Arizona,401 U. S. 1,held by a dividedvote that a person could not be kept out of the state bar for refusing to answer whether he had ever been a member of theCommunist Party;and see In re Stolar,401 U. S. 23.

[Footnote 2/24]SeeSlaughter House Cases,16 Wall. 36,83 U. S. 81.MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL

concur, dissenting.I respectfully dissent. Many weeks of the school term remain, and petitioner may not receive his degree despite

respondents' assurances that petitioner will be allowed to complete this term's schooling regardless of our decision. Any numberof unexpected events -- illness, economic necessity, even academic failure -- might prevent his graduation at the end of the term.Were that misfortune to befall, and were petitioner required to register for yet another term, the prospect that he would again facethe hurdle of the admissions policy is real, not fanciful; for respondents warn that

"Mr. DeFunis would have to take some appropriate action to request continued admission for the remainder of his lawschool education, and some discretionary action by the University on such request would have to be taken. "

Respondents' Memorandum on the Question of Mootness 3-4 (emphasis supplied). Thus, respondents' assurances havenot dissipated the possibility that petitioner might once again have to run the gauntlet of the University's allegedly unlawful

admissions policy. The Court therefore proceeds on an erroneous premise in resting its mootness holding on a supposed inabilityto render any judgment that may affect one way or the other petitioner's completion of his law studies. For surely if we were toreverse the Washington Supreme Court, we could insure that, if for some reason petitioner did not graduate this spring, he wouldbe entitled to reenrollment at a later time on the same basis as others who have not faced the hurdle of the University's allegedlyunlawful admissions policy.

Page 416 U. S. 349In these circumstances, and because the University's position implies no concession that its admissions policy is

unlawful, this controversy falls squarely within the Court's long line of decisions holding that the "[m]ere voluntary cessation ofallegedly illegal conduct does not moot a case." United States v. Phosphate Export Assn.,393 U. S. 199,393 U. S.203 (1968); see Gray v. Sanders, 372 U. S. 368 (1963); United States v. W. T. Grant Co., 345 U. S. 629 (1953); Walling v.Helmerich & Payne, Inc., 323 U. S. 37 (1944); FTC v. Goodyear Tire & Rubber Co., 304 U. S. 257 (1938); United States v.Trans-Missouri Freight Assn.,166 U. S. 290 (1897). Since respondents' voluntary representation to this Court is only that theywill permit petitioner to complete this term's studies, respondents have not borne the "heavy burden," United States v. PhosphateExport Assn., supra,at393 U. S. 203,of demonstrating that there was not even a "mere possibility" that petitioner would onceagain be subject to the challenged admissions policy. United States v. W. T. Grant Co., supra, at345 U. S. 633.On the contrary,respondents have positioned themselves so as to be "free to return to [their] old ways." Id.at345 U. S. 632.

I can thus find no justification for the Court's straining to rid itself of this dispute. While we must be vigilant

Documents

Warth v Seldin, Craig vs Boren